Amicus Curiae Brief — Matthew Borges, Petitioner v. United States

No. 25-757

In the

Supreme Court of the United States

MATTHEW BORGES,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE

ROBERT MCDONNELL, BRIDGET KELLY,

AND JOSEPH PERCOCO

IN SUPPORT OF PETITIONER

Daniel S. Noble

Counsel of Record

Vlad Shafran

Chandini Jha

KKL LLP

350 5th Avenue, 77th Floor

New York, NY 10118

(212) 390-9550

Daniel.Noble@KKLllp.com

Howard S. Master

Nardello & Co. LLC

1212 6th Avenue

New York, NY 10036

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

STATEMENT OF INTEREST ................................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 6

I.

The Sixth Circuit’s Interpretation of

McCormick’s “Explicit” Quid Pro Quo

Requirement Threatens Core First

Amendment Rights .......................................... 6

A. Criminal

Statutes

Must

Be

Interpreted

to

Minimize

First

Amendment Concerns ............................... 6

B. The Sixth Circuit’s Reading of

McCormick and Evans Interferes with

Political Discourse and Constrains

Officials from Performing Their

Duties ........................................................ 8

II.

The Current State of the Law Fails to

Provide

Fair

Notice

in

Bribery

Prosecutions

Involving

Campaign

Contributions ................................................. 13

III. The

Sixth

Circuit’s

Expansive

Interpretation Opens the Door to

Prosecutorial Overreach ................................ 16

IV. A Vague and Expansive Interpretation of

the Quid Pro Quo Requirement Threatens

Federalism ..................................................... 20

CONCLUSION ......................................................... 24

i

TABLE OF AUTHORITIES

Page(s)

Cases

Bond v. United States,

572 U.S. 844 (2014) ............................................... 22

Ciminelli v. United States,

598 U.S. 306 (2023) ............................................... 17

Citizens United v. FEC,

558 U.S. 310 (2010) ......................................... 2, 3, 7

Cleveland v. United States,

531 U.S. 12 (2000) ............................................ 16-17

Evans v. United States,

504 U.S. 255 (1992) ................................... 3, 8, 9, 14

FEC v. Cruz,

596 U.S. 289 (2022) ................................... 2, 3, 7, 20

Johnson v. United States,

576 U.S. 591 (2015) ............................................... 15

Kelly v. United States,

590 U.S. 391 (2020) ......... 1, 2, 15, 17, 18, 19, 20, 21

Kolender v. Lawson,

461 U.S. 352 (1983) ............................................... 13

Marinello v. United States,

584 U.S. 1 (2018) ................................................... 17

McCormick v. United States,

500 U.S. 257 (1991) ................ 2, 3, 4, 6, 8-14, 19, 20

McCutcheon v. FEC,

572 U.S. 185 (2014) ................................................. 7

ii

McDonnell v. United States,

579 U.S. 550 (2016) .................... 1, 2, 5, 7, 8, 10, 11,

14, 15, 17, 18, 20-22

McNally v. United States,

483 U.S. 350 (1987) ..................................... 2, 16, 20

Monitor Patriot Co. v. Roy,

401 U.S. 265 (1971) ................................................. 6

Percoco v. United States,

598 U.S. 319 (2023) .................... 1, 2, 5, 7, 8, 10, 13,

15, 17, 19, 21

Roth v. United States,

354 U.S. 476 (1957) ................................................. 6

Skilling v. United States,

561 U.S. 358 (2010) ................................... 13, 15, 17

Smith v. California,

361 U.S. 147 (1959) ................................................. 6

Snyder v. United States,

603 U.S. 1 (2024) ................................................... 17

United States v. Allinson,

27 F.4th 913 (3d Cir. 2022) ................................... 14

United States v. Benjamin,

95 F.4th 60 (2d Cir. 2024) ..................................... 14

United States v. Chastain,

979 F.3d 586 (8th Cir. 2020) ................................. 14

United States v. Davis,

588 U.S. 445 (2019) ............................................... 13

United States v. Giles,

246 F.3d 966 (7th Cir. 2001) ................................. 14

iii

United States v. Householder,

137 F.4th 454 (6th Cir. 2025)............ 4, 9, 10, 15, 19

United States v. Kincaid-Chauncey,

556 F.3d 923 (9th Cir. 2009) ................................. 14

United States v. McDonough,

727 F.3d 143 (1st Cir. 2013) .................................. 14

United States v. Siegelman,

640 F.3d 1159 (11th Cir. 2011) ............................. 14

United States v. Sittenfeld,

128 F.4th 752 (6th Cir. 2025)...................... 9, 14, 15

United States v. Sun-Diamond Growers of Cal.,

526 U.S. 398 (1999) ................................... 16, 17, 22

United States v. Taylor,

993 F.2d 382 (4th Cir. 1993) ................................. 14

United States v. Terry,

707 F.3d 607 (6th Cir. 2013) ................................... 9

United States v. Whitfield,

590 F.3d 325 (5th Cir. 2009) ................................. 14

Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc.,

455 U.S. 489 (1983) ............................................... 15

Constitutional Provisions

U.S. Const. amend. I ................ 2, 3, 5-7, 10-12, 19, 20

Statutes and Rules

18 U.S.C. § 1951 ......................................................... 9

Supreme Court Rule 37.2 ........................................... 1

iv

Other Authorities

Brief of Current and Former Elected Officials as

Amici Curiae, Blagojevich v. United States,

136 S. Ct. 1491 (No. 17-658) ................................. 22

Brief of Current and Former New York Elected

Government Officials as Amici Curiae,

Benjamin v. United States, 145 S. Ct. 982 (No.

22-3091) ................................................................. 23

Brief of Former Attorneys General as Amici

Curiae, Siegelman v. United States,

561 F.3d 1215 (11th Cir. 2009) .............................. 22

Brief of Former Federal Officials as Amici

Curiae, Sittenfeld v. United States, — S. Ct. —

(No. 25-49) ............................................................. 23

Brief of Former Federal, State, and Local

Elected Officials as Amici Curiae, Sittenfeld v.

United States, — S. Ct. — (No. 25-49) .................. 23

Brief of Law Professors Daniel Hemel, Gregory

Gilchrist, and Steven F. Smith as Amici

Curiae, Sittenfeld v. United States, — S. Ct. —

(No. 25-49) ............................................................. 23

Brief of Members and Former Members of the

Virginia General Assembly as Amici Curiae,

United States v. McDonnell, 792 F.3d 478 (4th

Cir. 2015) ............................................................... 22

Brief of The Institute for Free Speech as Amicus

Curiae, Sittenfeld v. United States, — S. Ct. —

(No. 25-49) ............................................................. 23

v

Campaign Finance Regulation: State

Comparisons, National Conference of State

Legislatures (Oct. 24, 2022), available at

https://www.ncsl.org/elections-andcampaigns/campaign-finance-regulation-statecomparisons ........................................................... 21

David W. Chen,

In Inquiry, It’s Christie Against Prosecutor,

N.Y. Times (Feb. 10, 2014), available at

https://www.nytimes.com/2014/02/10/nyregion

/in-inquiry-its-christie-againstprosecutor.html ..................................................... 18

David Y. Kwok,

Trends in Prosecution of Federal

and State Public Corruption,

2 Stetson Bus. L. Rev. 30 (2022) ........................... 22

Thomas F. McInerney,

The Regulation of Bribery in the United

States, 73 Int’l Rev. of Penal L. 81 (2002) ............ 21

Rehain Salam,

Will Bob McDonnell be a presidential

contender?, CNN (Feb. 27, 2013), available at

https://www.cnn.com/2013/02/26/opinion/sala

m-bob-mcdonnell ................................................... 18

Jimmy Vielkind,

Cuomo Allies Charged in Corruption Scheme,

Politico (Sept. 22, 2016), available at

https://www.politico.com/states/newyork/albany/story/2016/09/cuomo-aidepercoco-charges-105711 ........................................ 18

vi

STATEMENT OF INTEREST 1

Amici curiae Robert F. McDonnell, Bridget A.

Kelly, and Joseph Percoco are the prevailing petitioners in McDonnell v. United States, 579 U.S. 550 (2016),

Kelly v. United States, 590 U.S. 391 (2020), and

Percoco v. United States, 598 U.S. 319 (2023), respectively.

Previously, Governor McDonnell served as the

71st Governor of Virginia. Ms. Kelly served as Deputy

Chief of Staff to former New Jersey Governor Chris

Christie. Mr. Percoco served as former New York Governor Andrew Cuomo’s Executive Deputy Secretary

and campaign manager.

All three amici were convicted under theories of

federal criminal liability that this Court subsequently

found—unanimously—were extremely overbroad and

incorrect. As such, amici have first-hand insight into

the personal and practical impacts of interpretations

of federal criminal law that infringe on due process

rights, individual liberties, and principles of federalism.

1 No counsel for a party authored this brief in whole or in part

and no person other than amici and their counsel made a monetary contribution to its preparation or submission. Pursuant to

Supreme Court Rule 37.2, all parties have been timely notified of

our intent to file this brief.

1

SUMMARY OF ARGUMENT

Over the course of the past decade, this Court

unanimously overturned the criminal convictions of

all three amici. In doing so, the Court admonished—

repeatedly—that federal public corruption law is not

an area in which prosecutors should be afforded discretion to “cast a pall of potential prosecution” over

“commonplace” interactions between constituents and

public officials, McDonnell, 579 U.S. at 575, even those

involving “particularly well-connected and effective

lobbyists,” Percoco, 598 U.S. at 330–31. Nor is it a

means through which prosecutors should be permitted

to “set[ ] standards of disclosure and good government

for local and state officials.” Kelly, 590 U.S. at 399

(quoting McNally v. United States, 483 U.S. 350, 360

(1987)).

The Court’s pronouncements have even more

force where, as here, political speech and conduct are

implicated. A fundamental precept of our democratic

system is that the First Amendment protects campaign donors’ and other supporters’ efforts to influence

candidates, as well as candidates’ and elected officials’

responsiveness to their donors and supporters. See

Citizens United v. FEC, 558 U.S. 310, 359–60 (2010);

FEC v. Cruz, 596 U.S. 289, 306 (2022).

In accordance with these principles, more than

three decades ago, this Court established a standard

for quid pro quo bribery prosecutions involving campaign contributions in McCormick v. United States,

500 U.S. 257 (1991). That standard, which required

proof of an “explicit” quid pro quo when the “quid” is a

2

campaign contribution, was meant to prevent prosecutors from “open[ing] to prosecution not only conduct

that has long been thought to be well within the law,

but also conduct that, in a very real sense, is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been

from the beginning of the Nation.” Id. at 272.

Yet, relying on this Court’s decision only a year

later in Evans v. United States, 504 U.S. 255 (1992),

several Circuits—including the Sixth Circuit in this

case—have eviscerated the guardrails that this Court

intended to establish in McCormick, campaign finance

cases such as Citizens United and Cruz, and amici’s

own cases. In doing so, these Circuits have paved the

way for federal prosecutors to rely on capacious interpretations of federal criminal law to select their targets

from among a broad group of state and local donors,

candidates, public officials, lobbyists, and political consultants engaging in commonplace political activity.

The result is that core First Amendment rights are

threatened, political consultants such as Petitioner are

at risk of losing their liberty and suffering significant

reputational damage based on routine political conduct, and states and localities lose their constitutionally protected ability to regulate their own affairs.

This case is yet another example of why this

Court needs to intervene and clarify that only explicit,

unambiguous evidence of a quid pro quo may sustain

a bribery conviction in the context of campaign contributions. Petitioner—a consultant—was prosecuted

alongside Ohio Speaker of the House Larry Householder, based in part on Mr. Householder’s receipt of

campaign contributions. The government’s theory

3

was premised on Mr. Householder accepting contributions from an Ohio utility company with the understanding that he would support legislation favored by

that company. Yet a public official’s endorsement of a

campaign supporter’s interests may be entirely innocuous and includes commonplace conduct. As the concurring judge below observed, “[t]he district court’s

jury instructions . . . swept in everyday political activity.” United States v. Householder, 137 F.4th 454, 491

(6th Cir. 2025) (Thapar, J., concurring). As this Court

previously noted, in our government, “[m]oney is constantly being solicited on behalf of candidates, who

run on platforms and who claim support on the basis

of their views and what they intend to do or have

done.” McCormick, 500 U.S. at 272.

Amici previously stood in Petitioner’s shoes

when they were prosecuted and convicted based on

similarly overbroad theories of criminality that implicated routine political activity, constitutionally-protected individual liberties, and principles of federalism. All three amici suffered significant hardship during several years of investigation and litigation before

this Court ultimately overturned their convictions,

finding the government’s theories untenable. Notwithstanding the Court’s unanimous rulings in

amici’s favor, defending their criminal cases both at

trial and on appeal diverted them from their public duties, imposed substantial personal costs, and caused

irreparable injuries to their reputations.

Amici’s and the Petitioner’s cases have shown

that only clear rulings and guardrails from this Court

will protect donors, candidates, public officials, lobbyists, and political consultants from being targeted by

4

federal prosecutors for interactions that are commonplace—indeed, unavoidable—in our political system,

which relies on private donors to fund political campaigns by candidates who may in the future be in a

position to act on matters of interest to the donors.

The vague laws and overbroad theories currently

wielded by the federal government in bribery cases involving state and local political contributions fail to articulate standards of behavior “with sufficient definiteness that ordinary people can understand what

conduct is prohibited,” Percoco, 598 U.S. at 331 (quoting McDonnell, 579 U.S. at 576), and indeed, subject

public officials “to prosecution, without fair notice, for

the most prosaic interactions,” McDonnell, 579 U.S. at

576. Unless constrained, these prosecutions risk consigning the realm of politics to candidates who are independently wealthy and need not rely on donors to

finance their campaigns. They also risk deterring donors from exercising their First Amendment rights to

petition public officials whose campaigns they supported for fear of criminal investigation and prosecution.

Amici respectfully ask this Court to clarify that

only unambiguous evidence of an explicit quid pro quo

may sustain a federal bribery conviction involving

campaign contributions. As it did in amici’s cases, this

Court should grant the Petition in order to safeguard

individual liberties and protect state and local officials, candidates, donors, lobbyists, and political consultants from federal prosecutorial overreach.

5

ARGUMENT

I.

The Sixth Circuit’s Interpretation of McCormick’s “Explicit” Quid Pro Quo Requirement

Threatens Core First Amendment Rights

A.

Criminal Statutes Must Be Interpreted to

Minimize First Amendment Concerns

Time and again, this Court has interpreted

criminal statutes to avoid infringing on fundamental

First Amendment rights. As this Court pronounced

more than half a century ago: “The fundamental freedoms of speech and press have contributed greatly to

the development and well-being of our free society and

are indispensable to its continued growth.” Smith v.

California, 361 U.S. 147, 155 (1959) (quoting Roth v.

United States, 354 U.S. 476, 488 (1957)). Accordingly,

the “door barring federal and state intrusion into this

area cannot be left ajar; it must be kept tightly closed

and opened only the slightest crack necessary to prevent encroachment upon more important interests.”

Id.

That principle has even more force when the

law targets political speech and campaigns. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 271–72 (1971)

(“The First Amendment . . . has its fullest and most

urgent application precisely to the conduct of campaigns for political office”). Indeed, this Court has repeatedly cautioned against broad interpretations of

federal laws that may target constitutionally-protected interactions between officials and their constituents. For “it is well understood that a substantial

and legitimate reason, if not the only reason, to cast a

6

vote for, or to make a contribution to, one candidate

over another is that the candidate will respond by producing those political outcomes the supporter favors.”

Citizens United v. FEC, 558 U.S. 310, 359 (2010) (quoting McConnell v. FEC, 540 U.S. 93, 297 (2003) (Kennedy, J., concurring)).

As a result, in the context of campaign contributions, the “First Amendment . . . prohibits . . . attempts to tamper with the right of citizens to choose

who shall govern them.” FEC v. Cruz, 596 U.S. 289,

306 (2022) (internal citations and quotation marks

omitted); see also id. at 308 (“influence and access ‘embody a central feature of democracy—that constituents support candidates who share their beliefs and

interests, and candidates who are elected can be expected to be responsive to those concerns.’” (quoting

McCutcheon v. FEC, 572 U.S. 185, 192 (2014))).

This Court followed these principles when it

overturned amici’s convictions in McDonnell v. United

States, 579 U.S. 550 (2016) and Percoco v. United

States, 598 U.S. 319 (2023). As the Court noted in

McDonnell: “[t]he basic compact underlying representative government assumes that public officials

will hear from their constituents and act appropriately

on their concerns—whether it is the union official worried about a plant closing or the homeowners who

wonder why it took five days to restore power to the

neighborhood after a storm.” 579 U.S. at 575. In

Percoco, this Court was concerned that a vague, overly

broad prosecution theory could potentially infringe on

a host of First Amendment rights, including the rights

of influential private individuals to petition their government. See Tr. of Oral Arg. at 49, Percoco (No. 217

1158) (Alito, J.) (noting a concern that “interpreting

th[e] [relevant] statute” as proposed by the government would “sweep in lobbying”). Thus, in both cases,

this Court adopted a limiting interpretation of the federal laws at issue to avoid a reading that would “cast

a pall of potential prosecution” over commonplace political conduct. McDonnell, 579 U.S. at 575; see also

Percoco, 598 U.S. at 330.

B.

The Sixth Circuit’s Reading of McCormick and Evans Interferes with Political

Discourse and Constrains Officials from

Performing Their Duties

In McCormick, this Court emphasized the significant concerns stemming from bribery prosecutions

involving campaign contributions. The Court explained that “campaigns must be run and financed,”

and that “[s]erving constituents and supporting legislation that will benefit the district and individuals and

groups therein is the everyday business of a legislator.” McCormick v. United States, 500 U.S. 257, 272

(1991). In order to avoid criminalizing “conduct that

has long been thought to be within the law” and “that

in a very real sense is unavoidable as long as election

campaigns are financed by private contributions or expenditures,” this Court held that, in a prosecution involving allegations of bribery related to campaign contributions, the government must demonstrate that the

defendant agreed “to perform or not to perform an official act” “in return for an explicit promise or undertaking” in order to secure a conviction. Id. at 272–73

(emphasis added).

8

The following year, the Court decided Evans, a

case that involved a prosecution under the Hobbs Act

of a public official’s receipt of a personal cash payment

in addition to a campaign contribution. Evans v.

United States, 504 U.S. 255, 257–58 (1992). The Court

held that the prosecution in that case required only

“that a public official . . . obtain[] a payment to which

he was not entitled, knowing that the payment was

made in return for official acts.” Id. at 268. In a concurring opinion, Justice Kennedy observed that “[t]he

official and the payor need not state the quid pro quo

in express terms, for otherwise the law’s effect could

be frustrated by knowing winks and nods.” Id. at 274

(Kennedy, J., concurring in part and concurring in the

judgment).

In this case, the Sixth Circuit held that the existence of a quid pro quo agreement may be inferred

based upon circumstantial evidence. See United

States v. Householder, 137 F.4th 454, 473 (6th Cir.

2025) (citing United States v. Sittenfeld, 128 F.4th 752,

771 (6th Cir. 2025)). The lower court concluded that it

was bound to apply its precedent, which read Evans as

modifying McCormick, and held that a quid pro quo

“agreement can be formal or informal, written or unwritten, and express or implied.” Householder, 137

F.4th at 471 (citing United States v. Terry, 707 F.3d

607, 613 (6th Cir. 2013)). As a result, the Sixth Circuit

affirmed Petitioner’s (and Mr. Householder’s) conviction. 2

2 Although Petitioner was charged with a RICO conspiracy that

included several predicate offenses in addition to bribery under

the extortion statute, see 18 U.S.C. § 1951, the bribery predicate

9

In arriving at this holding, the Sixth Circuit

continued to side with several other Courts of Appeals

whose decisions have eroded the First Amendment

protections that this Court attempted to establish in

McCormick and that it has repeatedly reaffirmed in

both amici’s cases and its decisions related to campaign finance. As the concurring judge in this case

noted, the same concerns animating this Court in

McCormick “apply with full force” here. Householder,

137 F.4th at 491 (Thapar, J., concurring).

The Sixth Circuit’s approach, which allows federal prosecutors to rely on ambiguous evidence to convict officials receiving campaign contributions as well

as private citizens such as Petitioner, undoubtedly discourages candidates and private actors from participating in innocuous political activities that have traditionally been the hallmarks of our system of governance. See Percoco, 598 U.S. at 331 (noting the dangers

of an ambiguous test that attaches liability to private

actors only if their “clout exceeds some ill-defined

threshold” or if they become “particularly well-connected and effective lobbyists.”). As in McDonnell, officials will be left wondering “whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might

shrink from participating in democratic discourse.”

McDonnell, 579 U.S. at 575. To make matters worse,

the government’s sweeping theory of bribery law went

was the linchpin of Petitioner’s conviction. See Householder, 137

F.4th at 492 (Thapar, J., concurring) (“[I]f Householder’s publicofficial bribery predicates are invalid, then Borges’s conviction

rests on shaky ground to say the least.”).

10

even further in this case and swept in Petitioner, a lobbyist and political consultant who was not involved in

the receipt of campaign contributions by the public official.

This Court and other amici have, over the last

decade, repeatedly sought to prevent federal prosecutors from chilling First Amendment-protected interactions between public officials and their constituents.

As one of the amicus briefs filed by former U.S. Attorneys General, as well as former White House Counsel

who served under every President from Reagan to

Obama, in support of Governor McDonnell explained:

the “breathtaking expansion of public-corruption law

. . . chill[s] federal officials’ interactions with the people they serve” which “damage[s] their ability to effectively perform their duties.” Brief of Former Federal

Officials as Amici Curiae at 6, McDonnell v. United

States, 579 U.S. 550 (2016) (No. 15-474); see also Brief

of Former Virginia Attorneys General as Amici Curiae

at 1–2, 16, McDonnell v. United States, 579 U.S. 550

(2016) (No. 15-474); Brief of Former State Attorneys

General as Amici Curiae at 1–2, McDonnell v. United

States, 579 U.S. 550 (2016) (No. 15-474); Tr. of Oral

Arg. at 32, McDonnell (No. 15-474) (Breyer, J.) (“to

give that kind of power to a criminal prosecutor, who

is virtually uncontrollable, is dangerous”). Still, federal prosecutors and lower courts have failed to heed

these repeated admonitions.

Moreover, candidates and public officials are

not the only individuals adversely affected by lower

courts’ lack of adherence to McCormick’s and McDonnell’s holdings and reasoning. Under the Sixth Cir-

11

cuit’s expansive reading of the quid pro quo requirement, donors will be deterred from contributing to

their preferred campaigns or interacting with officials

whom they have supported politically for fear that a

skeptical prosecutor would interpret their contributions as an attempt to bribe the official. But as this

Court has repeatedly emphasized, an individual’s prerogative to contribute to the campaign of an official

who would act on, and promote, the constituent’s favored policy or support their favored cause is a core

First Amendment right that is central to our system

of governance. See McCormick, 500 U.S. at 272. And

here, the government cast an even wider net by charging (and convicting) Petitioner with RICO conspiracy

based in large part on an implicit quid pro quo scheme

in which he provided neither the “quid” nor the “quo.”

Finally, the overbroad interpretation of the

quid pro quo requirement adopted by the Sixth Circuit

and other courts will result in inequities in political

participation and representation that further erodes

First Amendment interests. The candidates who rely

most on constituents’ campaign contributions are

those who lack the personal funds to finance their own

campaigns. Because the current state of the law deters both candidates who seek funding and constituents who wish to support candidates from participating in the political process, our political system risks

becoming increasingly skewed towards candidates

who can self-fund and thereby avoid the risk that prosecutors will second-guess commonplace donor-candidate interactions. This could lead to a greater concentration of political authority in a small number of

wealthy individuals who do not face the “pall of poten-

12

tial prosecution” presented by the Sixth Circuit’s ruling. This state of the law cannot be what this Court

envisioned in McCormick.

II. The Current State of the Law Fails to Provide Fair Notice in Bribery Prosecutions

Involving Campaign Contributions

Fundamental precepts of due process are violated when a criminal law is “so vague that it fails to

give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” United States v. Davis, 588 U.S. 445, 448

(2019). Indeed, “the Constitution’s promise of due process does not tolerate . . . uncertainty in our laws—

especially when criminal sanctions loom.” Percoco,

598 U.S. at 332 (Gorsuch, J., concurring in the judgment). Vague laws impermissibly “hand off the legislature’s responsibility for defining criminal behavior

to unelected prosecutors and judges, and they leave

people with no way to know what consequences will

attach to their conduct.” Id. (internal citations and

quotation marks omitted). A statute “[must] [thus] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not

encourage arbitrary and discriminatory enforcement.”

Skilling v. United States, 561 U.S. 358, 402–03 (2010)

(quoting Kolender v. Lawson, 461 U.S. 352, 357

(1983)).

The current state of the law governing campaign finance-related bribery prosecutions fails to provide officials and their constituents notice as to the

line between criminal and innocuous conduct. In the

13

decades since McCormick and Evans were decided, the

Courts of Appeals have split on the government’s burden of proof in prosecuting defendants for bribery involving campaign contributions. 3 As a result, the law

has become so muddled that candidates, public officials, and donors have no clear and certain way of

knowing which acts in the political arena constitute

criminal conduct. Moreover, much of the disagreement regarding the applicable standard rests on the

difference between the terms “express” and “explicit,”

a “subtle distinction” that jurors as well as donors,

candidates, and public officials are unlikely to understand or be able to implement in practice with any consistency. See Sittenfeld, 128 F.4th at 790 (Murphy, J.,

concurring).

Similar concerns animated this Court in amici’s

cases when, by unanimous opinion in each case, it limited the reach of the applicable federal statute. Here,

as in McDonnell, “[u]nder the standardless sweep of

3 The Second, Third, Fifth, Sixth, Seventh, and Eleventh Circuits

have stated that Evans modified McCormick’s “explicit” requirement. See United States v. Benjamin, 95 F.4th 60, 71–72 (2d Cir.

2024); United States v. Allinson, 27 F.4th 913, 925 (3d Cir. 2022);

United States v. Whitfield, 590 F.3d 325, 349 (5th Cir. 2009); Sittenfeld, 128 F.4th at 771–72; United States v. Giles, 246 F.3d 966,

972 (7th Cir. 2001); United States v. Siegelman, 640 F.3d 1159,

1171–72 (11th Cir. 2011). Other circuits, however, have indicated

that a prosecution for bribery involving campaign contributions

requires something more than implied conduct to prove an explicit quid pro quo. See, e.g., United States v. McDonough, 727

F.3d 143, 155 n.4 (1st Cir. 2013); United States v. Taylor, 993

F.2d 382, 385 (4th Cir. 1993); United States v. Chastain, 979 F.3d

586, 591 (8th Cir. 2020); United States v. Kincaid-Chauncey, 556

F.3d 923, 936–37 (9th Cir. 2009).

14

the Government’s reading, public officials could be

subject to prosecution, without fair notice, for the most

prosaic interactions.” 579 U.S. at 576 (internal citations and quotation marks omitted). And as in

Percoco, the promulgated standard is “too vague” and

“does not . . . define . . . with sufficient definiteness

that ordinary people can understand what conduct is

prohibited.” Percoco, 598 U.S. at 330–31 (internal citations and quotation marks omitted); see also Kelly,

590 U.S. at 398, 403–04 (noting that a limiting construction of the wire fraud statute is required to avoid

vagueness concerns and to avoid “criminalizing all

acts of dishonesty by state and local officials”). Accordingly, “a more constrained interpretation” of the quid

pro quo requirement is necessary to “‘comport with the

Constitution’s guarantee of due process’” and “avoid[ ]

this ‘vagueness shoal.’” McDonnell, 579 U.S. at 576

(first quoting Johnson v. United States, 576 U.S. 591,

602 (2015); then quoting Skilling, 561 U.S. at 368).

The Sixth Circuit’s interpretation improperly

promotes arbitrary enforcement and selective prosecutions, which are particularly significant concerns in

cases involving alleged public corruption. See Village

of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 498 (1983) (“The degree of vagueness

that the Constitution [allows] . . . depends in part on

the nature of the enactment.”); Sittenfeld, 128 F.4th at

771 (permitting a jury to decide whether ambiguous

evidence may demonstrate a corrupt quid pro quo in

the campaign finance context); Householder, 137 F.4th

at 473 (permitting a jury to decide whether circumstantial evidence may demonstrate a corrupt quid pro

quo in the campaign finance context). In the political

15

arena, candidates and public officials may take positions that provoke controversy and strong dissent. In

the absence of clear standards of enforcement, prosecutors and juries may exercise their discretion to target these officials based on political ideology and their

own proclivities, rather than objective measures of

guilt.

Because the Sixth Circuit’s approach leaves officials and candidates guessing whether they could be

prosecuted for being responsive to their political supporters, and donors guessing whether they could petition candidates and officials whom they have supported, the ruling below cannot survive scrutiny. As

it did in amici’s cases, this Court should clarify the law

by confirming that a campaign contribution cannot be

treated as a bribe in the absence of unambiguous proof

of an explicit quid pro quo.

III. The Sixth Circuit’s Expansive Interpretation

Opens the Door to Prosecutorial Overreach

Prosecutorial discretion in the politically

charged arena of public corruption cases must be cabined by clearly imposed limits. Applying this guiding

principle, this Court has affirmed—time and time

again, including in amici’s cases—that federal corruption statutes should be given “a narrow, rather than a

sweeping,” interpretation. 4 United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 409 (1999). “[A]

4 Concerns about prosecutorial overreach have animated the lim-

itations imposed by this Court in numerous cases involving federal public corruption statutes. See McNally, 483 U.S. at 360;

Sun-Diamond, 526 U.S. at 406–07; Cleveland v. United States,

16

statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.” Id. at 412. The

government’s track record in interpreting these statutes expansively—especially in cases involving high

profile public official defendants, like Mr. Householder

here—is well documented. Recently, this Court reiterated that it “cannot construe a criminal statute on

the assumption that the Government will use it responsibly.” Snyder v. United States, 603 U.S. 1, 17

(2024) (quoting McDonnell, 579 U.S. at 576); see also

id. at 21 (Gorsuch, J., concurring) (“[C]ourts cannot

‘rely upon prosecutorial discretion to narrow the’ scope

of an ‘otherwise wide-ranging’ criminal law.” (quoting

Marinello v. United States, 584 U.S. 1, 11 (2018))); Tr.

of Oral Arg. at 32, McDonnell (No. 15-474) (Breyer, J.)

(expressing concern that under an expansive interpretation of corruption laws potentially implicating campaign activities, the “Department of Justice in the Executive Branch becomes the ultimate arbiter of how

public officials are behaving in the United States,

State, local, and national.”).

Nor are the dangers wrought by broad prosecutorial discretion in cases implicating the political process of purely academic concern to amici. Governor

McDonnell’s prosecution was initiated by the Depart-

531 U.S. 12, 23 (2000); Skilling, 561 U.S. at 408–11; McDonnell,

579 U.S. at 576; Kelly, 530 U.S. at 404; Ciminelli v. United States,

598 U.S. 306, 315–16 (2023); Percoco, 598 U.S. at 331; Snyder v.

United States, 603 U.S. 1, 17–18 (2024).

17

ment of Justice while he was being considered as a potential Presidential candidate. 5 Mr. Percoco was prosecuted after a far-reaching investigation into former

New York Governor Andrew Cuomo’s inner circle that

spanned more than two years. 6 And Ms. Kelly was indicted after a far-reaching probe into former New Jersey Governor Chris Christie that was the subject of

significant press attention. 7 In each of amici’s cases,

this Court found that prosecutors had creatively interpreted ambiguous federal laws to target conduct that

may not have been criminal.

In amici’s cases, this Court warned about the

dangers of interpreting federal criminal law in a manner that could criminalize routine political conduct. In

McDonnell, the Court expressed great concern with

the “broader legal implications of the Government’s

boundless interpretation of the federal bribery statute.” 579 U.S. at 575. In Kelly, the Court reminded

5 See Rehain Salam, Will Bob McDonnell be a presidential con-

tender?,

CNN

(Feb.

27,

2013),

available

at

https://www.cnn.com/2013/02/26/opinion/salam-bob-mcdonnell.

See Jimmy Vielkind, Cuomo Allies Charged in Corruption

Scheme, Politico (Sept. 22, 2016), available at https://www.politico.com/states/new-york/albany/story/2016/09/cuomo-aidepercoco-charges-105711.

6

7 See David W. Chen, In Inquiry, It’s Christie Against Prosecutor,

N.Y. Times (Feb. 10, 2014), available at https://www.nytimes.com/2014/02/10/nyregion/in-inquiry-its-christie-againstprosecutor.html.

18

federal prosecutors that their power to police the ethical behavior of state and local officials is not without

limits, since “not every corrupt act by state or local officials is a federal crime.” 590 U.S. at 404. And in

Percoco, this Court expressed skepticism about jury

instructions that lacked clarity regarding acceptable

and prohibited conduct, asking: “what does that [jury

instruction] mean in concrete terms? Is it enough if

an elected official almost always heeds the advice of a

long-time political adviser? Is it enough if an officeholder leans very heavily on recommendations provided by a highly respected predecessor, family member, or old friend?” 598 U.S. at 331. Judicial constraint is especially appropriate when, as in amici’s

cases and in Petitioner’s case, state and local laws and

regulations already define what is appropriate in the

political sphere for their jurisdictions.

This case reflects that federal prosecutors have

not yet received the message that this Court has repeatedly sent in amici’s cases (and others) with its concise analysis and clear legal standards. Petitioner’s

conviction involved lawful political speech and everyday political activity—activities that are protected by

the First Amendment. 8 See Householder, 137 F.4th at

The Sixth Circuit decision below nevertheless sanctioned a

framework under which jurors may infer the existence of a corrupt quid pro quo from ambiguous campaign-related exchanges.

It approved jury instructions permitting conviction based solely

on a finding that the official knew a contribution was given “in

return for” an official act—without requiring proof that the payment actually influenced or controlled the act, that the act would

not have occurred absent the payment, or that the official act was

controlled by the contribution. See Pet. Br. 11. Contra McCor8

19

491 (Thapar, J., concurring) (noting that the district

court’s jury instructions “swept in everyday political

activity” and “raise[d] serious First Amendment issues”).

This Court should, therefore, grant the Petition

and remind federal prosecutors—once again—that

they should not attempt regulation by prosecution of

the “vague” distinction between constitutionally-protected and unlawful conduct in the area of campaign

finance. Cruz, 596 U.S. at 308.

IV. A Vague and Expansive Interpretation of the

Quid Pro Quo Requirement Threatens Federalism

The Sixth Circuit’s vague and expansive reading of the quid pro quo requirement also undermines

core federalism principles. After all, federalism demands respect for authority of states to “regulate the

permissible scope of interactions between state officials and their constituents.” McDonnell, 579 U.S. at

576–77; see also id. (declining to “‘construe the statute

in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting

standards’ of ‘good government for local and state officials.’” (quoting McNally, 483 U.S. at 360)); Kelly, 590

U.S. at 399 (same).

mick, 500 U.S. at 273 (noting, consistent with the First Amendment, that a conviction may stand only when the parties understood that “official conduct will be controlled” by the contribution).

20

Respect for this bedrock constitutional principle

animated this Court’s approach in amici’s cases. Justice Breyer aptly noted, in Governor McDonnell’s case,

the need to avoid having “[t]he Department of Justice

in the Executive Branch become the ultimate arbiter

of how public officials are behaving in the United

States.” Tr. of Oral Arg. at 32, McDonnell (No. 15474). Justice Thomas raised a similar concern during

oral argument in Mr. Percoco’s case, questioning

whether “we are using a federal law to impose ethical

standards on state activity.” Tr. of Oral Arg. at 36,

Percoco (No. 21-1158). And in Ms. Kelly’s case, this

Court noted the danger of the federal government improperly “us[ing] the criminal law to enforce (its view

of) integrity in broad swaths of state and local policymaking.” 590 U.S. at 404.

This case presents yet another troubling assertion of federal prosecutorial authority over areas traditionally regulated by state and local governments,

which have already established a complex, tailored

scheme of laws and regulations that govern campaign

activity and public corruption in their jurisdictions. 9

“[A] narrow, rather than a sweeping, prohibition is

more compatible” with our constitutional structure

given the “intricate web of regulations, both administrative and criminal,” governing the political arena in

9 See, e.g., Campaign Finance Regulation: State Comparisons,

National Conference of State Legislatures (Oct. 24, 2022), available at https://www.ncsl.org/elections-and-campaigns/campaignfinance-regulation-state-comparisons; Thomas F. McInerney,

The Regulation of Bribery in the United States, 73 Int’l Rev. of

Penal L. 81, 100 (2002) (noting existence of laws and constitutional provisions related to bribery in all fifty states).

21

the states. Sun-Diamond, 526 U.S. at 409; see also

Bond v. United States, 572 U.S. 844, 856–57 (2014)

(rejecting an interpretation that “would dramatically

intrude upon traditional state criminal jurisdiction,”

and holding that statutes must be read to “avoid” having “such reach in the absence of a clear indication

that they do.”); see also id. at 856 (noting that criminal

statutes “must be read consistent with principles of

federalism inherent in our constitutional structure”).

Without this Court’s intervention, federal prosecutors will continue to substitute their standards of

ethical conduct in state and local campaign finance for

those reflected in the laws duly adopted by the

states. 10 Over the years, amici from across the political spectrum have submitted numerous briefs before

this Court and the various Courts of Appeals highlighting the dangers of permitting federal prosecutors

to police the state and local political arena through

their exercise of prosecutorial discretion. 11 This Court

10 Ensuring that federal prosecutors do not infringe on state ad-

ministrative and criminal regulation of campaign finance is all

the more important now, when federal “prosecution of state and

local corruption cases have risen disproportionately in comparison to” cases involving alleged federal corruption. David Y.

Kwok, Trends in Prosecution of Federal and State Public Corruption, 2 Stetson Bus. L. Rev. 30, 33 (2022).

11 See, e.g., Brief of Current and Former Elected Officials as Amici

Curiae, Blagojevich v. United States, 136 S. Ct. 1491 (No. 17-658);

Brief of Members and Former Members of the Virginia General

Assembly as Amici Curiae, United States v. McDonnell, 792 F.3d

478 (4th Cir. 2015); Brief of Former Attorneys General as Amici

Curiae, Siegelman v. United States, 561 F.3d 1215 (11th Cir.

22

should heed their call and grant the Petition in order

to constrain federal bribery prosecutions implicating

campaign contributions in the state and local political

arena within proper limits.

2009); Brief of Current and Former New York Elected Government Officials as Amici Curiae, Benjamin v. United States, 145

S. Ct. 982 (No. 22-3091); Brief of Law Professors Daniel Hemel,

Gregory Gilchrist, and Steven F. Smith as Amici Curiae, Sittenfeld v. United States, — S. Ct. — (No. 25-49); Brief of The Institute for Free Speech as Amicus Curiae, Sittenfeld v. United

States, — S. Ct. — (No. 25-49); Brief of Former Federal Officials

as Amici Curiae, Sittenfeld v. United States, — S. Ct. — (No. 2549); Brief of Former Federal, State, and Local Elected Officials as

Amici Curiae, Sittenfeld v. United States, — S. Ct. — (No. 25-49).

23

CONCLUSION

This Court has attempted, through unanimous

rulings in amici’s cases dating back a decade, to ensure that federal corruption prosecutions are consistent with due process rights, individual liberties,

and principles of federalism. Petitioner’s case shows

that prosecutors have failed to heed this Court’s admonitions and need another reminder from this Court

to protect state and local participants in the political

process from federal prosecutorial overreach.

For the foregoing reasons, and for the reasons

stated in the Petition, the Court should grant the Petition for a Writ of Certiorari.

Dated: February 23, 2026

Respectfully submitted,

DANIEL S. NOBLE

Counsel of Record

VLAD SHAFRAN

CHANDINI JHA

KKL LLP

350 5th Avenue, 77th Floor

New York, NY 10118

(212) 390-9550

Daniel.Noble@KKLllp.com

24

HOWARD S. MASTER

NARDELLO & CO. LLC

1212 6th Avenue

New York, NY 10036

Counsel for Amici Curiae